Crl.M.C.No.940/2019

Crl.M.C.No.940/2019 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943_ _CRL.MC NO. 940 OF 2019_ _AGAINST THE ORDER/JUDGMENT IN CC 1597/2017 OF JMFC, KAKKANAD (TEMPORARY)_ ## _PETITIONERS/ACCUSED NOS.1 TO 4:_ - _1 VINOD KUMAR.N, AGED 46 YEARS,_ _S/O.N.V NARAYANAN, M.V.I , FORMERLY POSTED IN REGIONAL TRANSPORT OFFICE, KAKKANAD, ERNAKULAM DISTRICT, PIN 682 030 NOW WORKING AS M.V.I , SUB R.T.O, MATTANCHERRY, CHULLIKKAL P.O, ERNAKULAM DISTRICT, PIN-682 005, RESIDING AT NANGELIL HOUSE, PERUMBAVOOR, PIN 683542, PERUMBAVOOR VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT._ _2 FIROZ BIN ISMAIL, AGED 39 YEARS,_ _S/O.P.S ISMAIL, A.M.V.I FORMERLY POSTED IN REGIONAL TRANSPORT OFFICE, KAKKANAD, ERNAKULAM DISTRICT, PIN 682 030, NOW WORKING AS RTO, PALAKKAD, RESIDING AT PALATHINGAL HOUSE, MARKET P.O, MUVATTUPUZHA, ERNAKULAM DISTRICT PIN 686 673._ - _3 BEJOY PETER, AGED 41 YEARS,_ _S/O.K.V PETER,A.M.V.I , FORMERLY POSTED IN REGIONAL TRANSPORT OFFICE, KAKKANAD, ERNAKULAM DISTRICT, PIN 682 030, NOW WORKING AS A.M.V.I, THRIPUNITHURA, RESIDING AT KOODARAPPILLIL, THOMASPURAM, MARADU P.O, ERNAKULAM, KOCHI 682 304._ _4 VIJESH P.V, AGED 33 YEARS,_ _S/O.P.R VIJAYAN, A.M.V.I, FORMERLY POSTED IN REGIONAL TRANSPORT OFFICE, KAKKAND, ERNAKULAM DISTRICT, PIN 682 030, NOW WORKING AS A.M.V.I, KAKKANAD, RESIDING_ Crl.M.C.No.940/2019 2 _AT PUTHENPURA HOUSE, THURUTHY P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN 683545._ _BY ADVS. SEBASTIAN CHAMPAPPILLY SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN_ ## _RESPONDENTS/STATE:_ - _1 STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM_ - _(C.C NO. 1597 OF 2017 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD)_ - _2 JANEESH P.A, AGED 34 YEARS, S/O.ABDUL KHADER, POTHIYIL HOUSE, VILANG P.O, KARIKKULAM KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DIST, PIN 683561._ - _3 MANOHARAN R, AGED 56 YEARS,_ - _S/O.V.K RAMAKRISHNAN, MAHESH BHAVAN, MUDUKULAM SOUTH, MUDUKULAM P.O, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN 690 506._ _BY ADVS._ _SRI.IEANS.C.CHAMAKKALA_ _DR.ABRAHAM P.MEACHINKARA_ _R1 SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON 20.12.2021 PASSED THE FOLLOWING:_ Crl.M.C.No.940/2019 3 ## **ZIYAD RAHMAN A.A, J.** -------------------------------------------------------Crl.M.C.No.940 of 2019 ---------------------------------------------Dated this the 20[th] day of December, 2021 ## **O R D E R** Petitioners are accused Nos.1 to 4 in C.C.No.1597 of 2017 on the file of the Judicial First Class Magistrate Court, Kakkanad. The aforesaid case was registered on the basis of a private complaint submitted by the 3[rd] respondent herein. Offences alleged against the petitioners are under Sections 341, 323, 506(i) read with Section 34 of IPC. 2. The facts of the case is as follows: the 1[st] petitioner is the Motor Vehicle Inspector and the petitioners 2 and 4 are Assistant Motor Vehicle Inspectors. On 06.05.2015, the 1[st] petitioner happened to intercept a Heavy Goods Vehicle bearing registration No.KL-29-J5332 at Vyttila at 4 am belonging to the 3[rd] respondent. It was found that the vehicle was carrying overload and since this was in violation of Section 113 read with Section 194 of the Motor Vehicles Act, 1988, the vehicle was Crl.M.C.No.940/2019 4 detained. The driver of the vehicle was also not in possession of permit issued for the vehicle. Accordingly, Annexure-A5 Check Report was issued to the driver. As the driver sought some time to compound the offence by remitting an amount of Rs.24,000/as compounding fee, as contemplated under Section 200(1) of the Motor Vehicles Act, he was granted time, while retaining the said vehicle with the inspection team. Thereafter, petitioners continued their duty. While carrying out their duty they happened to intercept several other vehicles as well. It is the case of the petitioners that as the 3[rd] respondent who is the owner of the vehicle was a resident of Kayamkulam, he reached Ernakulam only by evening for remitting the fine. By that time, the 2[nd] respondent who claims himself to be the President of the Ernakulam District Unit of the Kerala Torus Tipper Transport Association, came rushing and prevented the 3[rd] respondent from remitting the fine and this resulted in an altercation between the 2[nd] respondent and the petitioners herein. In connection with the same, on the basis of a complaint submitted by the 1[st] petitioner, Thrikkakkara Police registered Crime Crl.M.C.No.940/2019 5 No.481 of 2015 against the 2[nd] respondent herein for the offences punishable under Sections 353 and 506(1) of IPC. A copy of the FIR in Crime No.481 of 2015 is produced in the petition as Annexure-A6. By this time, the 3[rd] respondent remitted the compounding fee and his vehicle was released. Annexure A9 charge sheet was submitted by the Thrikkakkara Police against the 2[nd] respondent after completing the investigation on Annexure-A6 FIR before the Judicial First Class Magistrate Court, Kakkanad. The Learned Magistrate, took cognizance thereon as C.C.No.677 of 2015. The said case is now pending trial. 3. As a counter blast against the aforesaid complaint, another complaint was submitted by the 2[nd] respondent before the Judicial First Class Magistrate Court, Kakkanad on 16.07.2015, which is Annexure-A10, raising certain allegations against the petitioners herein. The offences alleged against the petitioners in the said complaint were under Sections 341, 323, 506(ii) and Section 34 IPC. It was contended that the 2[nd] respondent was wrongly restrained and was assaulted. Crl.M.C.No.940/2019 6 4. Thirkkakkara Police conducted a detailed investigation in Crime No.774 of 2015 and found that the said complaint is a false one. Annexure-A13 is the said final report. Subsequently, a private complaint was submitted by the 2[nd] respondent as C.M.P.No.341 of 2015 before the Judicial First Class Magistrate Court, Kakkanad. The learned Magistrate as per order dated 17.10.2017 has taken cognizance of offences punishable under Section 341, 323, 506(ii) read with Section 34 IPC against the petitioners herein. 5. This Crl.M.C is filed by the petitioners herein challenging Annexure-A14 order by which the learned Magistrate has taken cognizance of the aforesaid offences against the petitioners herein. The main ground raised by the petitioner is that, the act of taking cognizance against the petitioners herein is improper in view of the fact that, no sanction as contemplated under Section 197 Cr.P.C has been obtained before taking cognizance. 6. Heard Dr.Sebastian Chambappilly, learned counsel for the petitioners, Smt.Maya M.N. learned Public Prosecutor Crl.M.C.No.940/2019 7 for the State and Sri.Ieans C. Chamakkala learned counsel for the 2[nd] respondent. 7. The learned counsel for the petitioners contends that in the absence of a sanction under Section 197 Cr.P.C, the learned Magistrate could not have taken cognizance of the aforesaid offence. It is pointed out that the offence alleged against them are in respect of the acts alleged to have been committed while the petitioners were discharging their duty. He placed reliance upon a judgment of the Honourable Supreme Court in **Devaraja.D v. Owais Sabeer Hussain [(2020) 7 SCC 695]** and **Anil Kumar and Others v. M.K.Aiyappa and Another [2013 (4) KLT 125]** . 8. On the other hand, the learned Public Prosecutor as well as the learned counsel for the 2[nd] respondent would contend that the sanction under Section 197 Cr.P.C was not necessary in the facts and circumstances of the case. According to them, the incident occurred after the office hours and there is absolutely no evidence that they were on duty at the relevant time. The learned counsel for the 2[nd] respondent referred to the Crl.M.C.No.940/2019 8 specific averments made in Annexure-A11 complaint, wherein it is mentioned that at the relevant time the petitioners were attending a farewell party of one of their colleagues in a hotel. 9. The only question that arises here is whether the allegations against the petitioners were connected with the official duties and as to whether at the relevant time they were acting in discharge of their duties. The said question is having crucial importance, while considering the requirement of obtaining sanction under Section 197 Cr.P.C. In paragraph Nos.73, 74 and 77 of decision of the Honourable Supreme Court ## in **Devaraja.D** (supra), it is observed as follows: “73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. Crl.M.C.No.940/2019 9 74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under S.197 of the Code of Criminal Procedure and/or S.170 of the Karnataka Police Act. 77. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.” The aforesaid judgment was rendered by the Honourable Supreme Court after referring to a large number of decisions of the Honourable Supreme Court and various High Courts. 10. The basic principle that was laid down in the said case is that, if on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, and Crl.M.C.No.940/2019 10 where the criminal proceeding is apparently prompted by malafides and instituted with ulterior motive, power under Section 482 Cr.P.C can be invoked for quashing the proceedings for want of sanction. When the factual circumstances in this case is examined, the following aspects can be seen. The entire dispute stems up from the detention of the vehicle belonging to the 3[rd] respondent. As evidenced by Annexure-A5 Check Report, proceedings were initiated against the 3[rd] respondent for overloading the vehicle. It is also discernible from the records that several other vehicles were also detained by the petitioner herein as part of their duties. When the 3[rd] respondent expressed his willingness to remit the compound fee pursuant to Annexure-A5, the 2[nd] respondent herein is alleged to have interfered in the matter and attempted to prevent the 3[rd] respondent from remitting the fine which resulted in certain exchange of words between the petitioners and the 2[nd] respondent. In respect of the same, police have registered a case against the 2[nd] respondent herein and a final report is also filed. The aforesaid FIR was registered on 06.05.2015 itself, Crl.M.C.No.940/2019 11 whereas a private complaint which was submitted by the 2[nd] respondent against the petitioners herein was on 19.07.2015. It is evident that police had conducted an investigation on the basis of the complaint submitted by the 2[nd] respondent by registering Crime No.774/15 and ultimately, found the same to be false. Accordingly, Annexure-A13 final report has been submitted by the police. The contents of the aforesaid final report would indicate that, at the time of the alleged incident, the petitioners were on duty and the said complaint was submitted by the petitioners against the 2[nd] respondent, as an attempt was made by the 2[nd] respondent herein to prevent the petitioners from discharging their duties. It was also found in Annexure-A13 report that, the complaint itself was submitted on account of the grudge with the 2[nd] respondent having against the petitioners herein, due to the fact that, at their instance a crime was registered against the 2[nd] respondent. Findings in the aforesaid report indicates that at the relevant time the petitioners were in discharge of duty. It is also discernible from the records that the entire dispute stems up from the act of Crl.M.C.No.940/2019 12 collection of fine from the 3[rd] respondent herein, which is under dispute. It is true that, the incident has occurred after the office hours and beyond the premises of the public office. It occurred in the compound of a hotel. However, that by itself cannot be treated as a reason to conclude that the petitioners were not on discharging their duty at the relevant time. The documents would suggest that the 3[rd] respondent had come to the aforesaid premises for the purpose of paying the compounding fee to get the vehicle released from the custody. In such circumstances, it can be safely concluded that there is a reasonable connection between the acts alleged against the petitioners and the official duty. Findings in the police report in Annexure-9 and AnnexureA13 final reports, both arises from the very said incident and the said fact cannot be simply brushed aside. In such circumstances, as alleged by the Honourable Supreme Court in **Devaraja.D** (supra), it is a case in which the cognizance should have been taken only after obtaining sanction from the Government. It is to be noted that the sanction as contemplated under Section 197 Cr.P.C is a protection provided Crl.M.C.No.940/2019 13 to the public servants from unwanted allegations against them while they are discharging their duties. In this case, from the facts and circumstances, I am convinced that there exists a reasonable connection with the discharge of duties and the allegations raised against them. In such circumstances, Annexure-A14 order passed by the Judicial First Class Magistrate Court, Kakkanad taking cognizance of the offence against petitioners, without obtaining sanction under Section 197 Cr.P.C was not proper. Accordingly, Annexure-A14 is set aside and all further proceedings in C.C.No.1597/2017 on the file of the Judicial First Class Magistrate Court is hereby quashed. This order will not preclude the 2[nd] respondent in taking necessary steps for obtaining sanction under section 197 of Cr.P.C for prosecution of the petitioners herein. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/8.12.21 Crl.M.C.No.940/2019 14 ## _APPENDIX OF CRL.MC 940/2019_ ## _PETITIONER ANNEXURES_ - _ANNEXURE 1 (TRUE COPY OF THE ORDER ISSUED VIDE G.O(RT) NO. 34/2012/TRANS. DATED 25-12012 INDICATING HIS SELECTION FOR THE RECEIPT OF KERALA CHIEF MINISTER'S TRANSPORT MEDAL FOR THE YEAR 2012)_ - _ANNEXURE 2 (TRUE COPY OF ORDER NO. 65/9397/TC/2015 DATED 6-5-2015 REGARDING GOOD ENTRY SERVICE_ - _ANNEXURE 3 (TRUE COPY OF ORDER NO. G3/23076/TC/2014 DATED 22-11-2014 REGARDING MERITORIOUS SERVICE' IN COLLECTING TAX)_ - _ANNEXURE 4 (TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGIONAL TRANSPORT OFFICER (ENFORCEMENT) DATED 5-6-2015 SHOWING ALLOCATION OF DUTY TO THE 1ST PETITIONER ON 6-5-2015)_ - _ANNEXURE 5 (TRUE COPY OF CHECK REPORT ISSUED IN RESPECT OF THE VEHICLE (KL 29 J 5332) BELONG TO THE 2ND RESPONDENT DATED 6-52015)_ - _ANNEXURE 6 (TRUE COPY OF F.I.R IN CRIME NO. 481 OF 2015 DATED 6-5-2015)_ - _ANNEXURE 7 (TRUE COPY OF THE REMAND REPORT ALONG WITH THE MEDICAL REPORT DATED 7-5-2015)_ - _ANNEXURE 8 (TRUE COPY OF MEDICAL CERTIFICATE OF THE 2ND RESPONDENT ISSUED BY THE ASSISTANT SURGEON, GOVERNMENT DISTRICT HOSPITAL, ALUVA DATED 7-5-2015)._ - _ANNEXURE 9 (TRUE COPY OF THE CHARGE SHEET IN C.C_ Crl.M.C.No.940/2019 15 - _NO. 677 OF 2015 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD DATED 5-6-2015 FILED ON 27-07-2015)_ - _ANNEXURE 10 (TRUE COPY OF THE COMPLAINT IN CRIMINAL M.P NO. 341 OF 2015 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKAND DATED 16-07-2015)_ - _ANNEXURE 11 (TRUE COPY OF AN AFFIDAVIT DATED 16-072014 FILED ON 16-07-2015 FILED IN SUPPORT OF HIS PETITION IN C.M.P NO. 341` OF 2015)_ - _ANNEXURE 12 TRUE COPY OF THE F.I.R IN CRIME NO. 774 OF 2015 DATED 19-07-2015)_ - _ANNEXURE 13 (TRUE COPY OF FINAL REPORT (REFER REPORT) IN CRIME NO. 774 OF 2015 DATED 8-8-2016)_ - _ANNEXURE 14 (CERTIFIED COPY OF THE ORDER IN C.M.P NO. 341 OF 2015 DATED 17-10-2017 OF THE JFCM COURT, KAKKANAD)_ - _ANNEXURE 15 (TRUE COPY OF THE PROCEEDINGS IN C.C NO. 1597 OF 2017 ON THE FILE OF THE JFCM COURT, KAKKANAD._ - _ANNEXURE 16 (NOTARIZED AFFIDAVIT GIVEN BY THE 3RD RESPONDENT DATED 29-1-2019)_